District Court New South Wales Medium Neutral Citation: R v MURRAY [2023] NSWDC 87 Hearing dates: 24 February 2023 Date of orders: 13 April 2023 Decision date: 13 April 2023 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced – see [78]-[81] Catchwords: Sentence – domestic violence – need for general deterrence – sexual assault as domestic violence – multiplicity of offending – deterrence for breaching apprehended violence order Legislation Cited: Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act, 1999 Criminal Code, 1995 (Cth) Criminal Procedure Act, 1986 Cases Cited: Bugmy v The Queen [2013] HCA 37 Cherry v R [2017] NSWCCA 150 Hiron v R [2007] NSWCCA 336 Munda v Western Australia [2013] HCA 38 Park v The Queen [2021] HCA 37 R v BA [2014] NSWCCA 148 R v Biles (No 2) [2017] NSWSC 525 R v Eckermann [2013] NSWCCA 188 R v Gavel [2014] NSWCCA 56 R v Hamid [2006] NSWCCA 302 R v Lloyd [2022] NSWSC 906 R v Tuala [2015] NSWCCA 8 Category: Sentence Parties: Rex Brett MURRAY Representation: Counsel: Mr R Hussey of counsel for offender Solicitors: Mr A Thomas, for DPP Ms T Mudditt LAC instructing counsel File Number(s): 2021/363334, 2022/4886, 2022/155954 Publication restriction: No Remarks on Sentence 1. The offender appeared at the Wagga Wagga Local Court on 20 July 2022 and pleaded guilty to a number of charges, relating to a number of episodes of offending. As they appear in the Crown tender bundle, exhibit A on sentence, they are: 1. Aggravated enter dwelling with intent, contrary to s 111(2) of the Crimes Act, 1900; 2. Stalk/intimidate contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, 2007; 3. Common assault, contrary to s 61 of the Crimes Act; 4. Sexual intercourse without consent, contrary to s 61I of the Crimes Act; and 5. Use carriage service to menace/harass/offend contrary to s 474.17(1) of the Criminal Code, 1995. 1. Pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 24 February 2023. In respect of the offending contrary to state legislation the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. In respect of the Commonwealth offending the offender is entitled to consideration for facilitating the course of justice, including the utilitarian value of the plea which I assess at a numerical value of 25%. 2. The maximum penalty for the charge of aggravated enter dwelling with intent is 14 years imprisonment, with no standard non-parole period. The maximum penalty for the stalk/intimidate charge is one of 5 years imprisonment. The maximum penalty for the common assault is two years imprisonment. The maximum penalty for the charge of sexual intercourse without consent is 14 years and in respect of that matter Parliament has specified a standard non-parole period of seven years. The maximum penalty for the Commonwealth offence is five years imprisonment. 3. In respect of each episode of offending there are further charges attaching to various certificates pursuant to s 166 of the Criminal Procedure Act, 1986. Again, as they appear on the Crown tender bundle those charges are as follows: 1. In respect of the offending that occurred on 20 December 2021, that is the offending to which the charge of aggravated enter dwelling with intent applies, there are four offences attaching to a section 166 certificate namely a charge of stalk/intimidate, contravene apprehended domestic violence order, intentionally choke person without consent and one count of common assault. 2. In respect of the offending on 4 January 2022, that is the offending to which the charges of stalk/intimidate and common assault apply, there are two charges of contravene apprehended domestic violence order, attaching to a s 166 certificate. 3. In respect of the offending on 22 October 2021, that is the offending to which the charges of sexual intercourse without consent and the Commonwealth offence apply, there is a charge of contravene apprehended domestic violence order attaching to a s 166 certificate. 1. However I note the charges of stalk/intimidate if dealt with on indictment carry a maximum penalty of 5 years; the charges of contravention of a domestic violence order carry a maximum penalty of two years, as does the charge of common assault. The charge of intentionally choke without consent if dealt with on indictment carries a maximum penalty of five years imprisonment. 2. In respect of the matters attaching to the various s 166 certificates the jurisdictional limit of the Local Court applies. See for example Park v The Queen [2021] HCA 37. I also note the decision of Greaves v R [2020] NSWCCA 140 at [66] per Cavanagh J. 3. The matters for which the offender appears for sentence are not set out in chronological order in the Crown tender bundle, exhibit A on sentence. However, I will deal in these remarks with the offending in chronological order. The first offence in time is the offence of sexual intercourse without consent committed on 22 October 2021. The facts dealing with that matter are at tab 9 of the Crown tender bundle. Those facts also deal with a charge of Contravene Apprehended Domestic Violence Order which attaches to a s 166 certificate and the Commonwealth offending. Sexual Intercourse without Consent/ Commonwealth offence 1. The victim and the offender had been in an intimate relationship for about six months as at the date of the offence. At about 11:30 pm on 22 October 2021 the victim and offender were at the victim's home in Mount Austin, a suburb of Wagga Wagga. There was no one else in the house. The offender was drinking cask wine that he had brought with him to the victim's home. The offender was intoxicated and was slurring his speech and appeared to be "short tempered and extra anxious". They were in the victim's bedroom watching a movie and they began to argue over fears held by the offender of infidelity by the victim. 2. The victim denied cheating and told the offender not to be silly and that he was being paranoid. The offender said, "That's what they all say, I know that you are into kink," and "I know what you want me to do, I'm gonna do what you want". He flipped the victim over so that she was lying on her stomach. The offender said, "You want it in the arse". The victim said "No Brett." The offender said, "You know you want it". The victim was wearing her pyjamas and the offender was wearing a pair of boxer shorts. 3. The offender started to kiss the victim's neck while she was lying face down on the bed. The offender straddled her, sitting on top of her thighs while her arms were out in front of her on the bed. She said to the offender, "Brett don't do this, please don't do this." The offender said, "Shh you will enjoy this." The offender crossed the victim's arms over and put his arm down on top of them preventing her from moving them. As the offender held the victim's arms on the bed he used his other hand to remove the victim's pants. The victim said in what the facts describe as a stern and assertive voice, "Don't do this". 4. The offender inserted his penis into the victim's anus causing the victim pain. The offender began to move in and out of the victim's anus, slowly at first but then began to increase the speed and force. The offender started calling the victim names. The intercourse lasted for about 7 minutes, during which time the victim was pleading with the offender to stop however he kept going. The offender said, "No come on, you like this, doesn't this feel good, aren't you glad I'm doing this, take it all, you are my dirty little girl." 5. After that the offender flipped the victim over and forced his penis into her mouth. The victim tried resist him putting it in her mouth. The offender said "take it all, suck it". The offender held the back of the victim's head as his put his full penis into her mouth. The offender did not ejaculate and after about two minutes pushed the victim away and took a drink out of his schooner of wine. The victim took this opportunity to get off the bed and go into the bathroom and she hopped into the shower where she stayed for about five minutes. 6. When she finished in the shower the victim put her pyjamas back on and went back to the bedroom where the offender was lying on the bed in his boxer shorts looking at his phone. The victim took half a sleeping tablet and went straight to sleep. At about 11 am the following morning the victim woke and there was a further argument between the offender and the victim. The victim told the offender that he raped her. The offender said, "No it wasn't, it was role-play I am not a rapist." The victim said, "No you actually did rape me. Can you please leave." The offender said, "You planned all this didn't you, what are you waiting for the next man to come in? I don't deserve this." 7. Following this incident there were further domestic violence related incidents as a result of which on 3 December 2021 an Interim ADVO (apprehended domestic violence order) was made at the Wagga Wagga Local Court preventing any form of contact between the offender and the victim. 8. On 4 January 2022 the offender was arrested by police at the victim's home for an unrelated domestic violence matter as well as breaching his bail. The offender was refused bail as a result. On 13 January 2022 the offender sent a letter from the Junee Correctional Centre to the victim at her home address. After reading the letter the victim felt empathy for the offender and feared that he may self-harm in custody so she replied to the letter. She told the offender she would obtain a post office box for him to send further letters to avoid breaches being detected. She in fact did this and the details of the post office box she obtained are set out in the facts. The offender sent the victim a further letter; that letter contained details of the relationship between the two of them. The offender and victim exchanged letters, with the offender sending a total of 16 letters. The letters sent by the offender included personal details of their relationship and commentary on his forthcoming court appearances. The last letter was received by the victim on 25 March 2022. The offender said that he was barely wanting to live and that he attempted to puncture his jugular vein and be done with it. On 5 April 2022 the victim reported the letters to the police. 9. The facts then deal with the Commonwealth offending. On 18 February 2022 the victim, at the offender's direction, obtained a new phone with a new number (which is set out within the facts) so that the offender could contact the victim. On receiving a call from the correctional centre, the victim gave a name of Louise Wall which was a combination of her middle and maiden names. This was also done at the direction of the offender. 10. On 28 February 2022 the victim began receiving phone calls from the offender from gaol. During these phone calls the offender would tell the victim that calling her cost him money and affected his ability to buy food. He would also abuse her if she failed to answer the phone when he rang. He would often leave voice recordings on her phone. The offender would call the victim almost daily. Most calls, the victim would not answer but on the occasions when she did the offender would attempt to persuade her to vary the ADVO. The victim maintained that the calls made her feel trapped and under the offender's control. The victim received a number of abusive voicemails on 21 March 2022 whereafter she blocked the gaol number contacting her phone and decided to report the matter to police. On 23 March 2022 the victim attended the local police station and supplied a statement. On 3 May 2022 the offender was taken to the Wagga Wagga Police Station where, as was his right, he declined to be interviewed Assessment of Criminality of SIWC, Breach ADVO, Use Carriage Service to Harass 1. The offence of sexual intercourse without consent is the most serious matter for which the offender appears for sentence. The fact that the offender knew the victim and had been in an intimate relationship with him does not make the matter less serious. The intercourse was forced intercourse, which continued for several minutes with the offender applying force the whole time, holding the victim on the bed. The motive for the offender committing the offence was his concerns over the victim's infidelity and can properly be seen as some type of revenge for the perceived infidelity. The offending to which the charge relates was not isolated, as the offender also forced his penis into the victim's mouth immediately after the anal intercourse. The objective seriousness of a sexual offence is determined according to the entirety of the facts and circumstances of the case. In this regard see for example R v Gavel [2014] NSWCCA 56 at [97] and R v BA [2014] NSWCCA 148 at [37]. In all the circumstances the sexual intercourse without consent matter is in the midrange of seriousness. 2. The charge of Contravene Apprehended Domestic Violence Order is a less serious example of that type of offence, noting that the breach was contacting the victim. In that particular matter the breach was not one of actual violence. Nevertheless, there were a number of letters sent by the offender in contravention of the order that he not contact the victim. There is also the aspect of the offender attempting to exert control of the victim. 3. This aspect of attempting to control the victim is also an aspect of the Commonwealth offending. The phone was obtained at the offender's direction and it was the offender who directed the victim to engage in the subterfuge so far as her name is concerned. The use of the phone was repeated over a period of weeks. The matter is below mid-range, but not substantially so. Aggravated Enter Dwelling With Intent and Associated s 166 matters 1. I now deal with the offending that occurred on 20 December 2021. The facts in respect of this matter set out that the offender and victim are known to each other and had been in what is described in the facts as a "sporadic on and off again relationship for 3 to 4 months". The offender did not live with the victim and had his own residence. 2. At about 9:30 pm on Monday, 20 December 2021 the victim and her daughter arrived at the victim's home in Mount Austin where the offender had been staying with the victim's permission for some days. The victim became aware on arriving that the offender had been drinking alcohol. A little later the victim was in the main bathroom scrolling through Facebook when the offender entered without knocking and noticed a comment on the victim's Facebook page, causing him frustration and anger. The offender began making allegations towards the victim accusing her of infidelity and an argument developed between the two of them. 3. The victim and the offender moved to the bedroom where the argument continued. The victim observed what she described as a "wildness" in the offender's eyes and the offender's demeanour became increasingly intimidating and aggressive, with him telling the victim that he was not going to share her. The offender said to the victim "You're a cheater, you just wanted this," and "You love all this." In fear, the victim grabbed a pen to defend herself whilst pointing to the bedroom door repeatedly telling the offender to please leave. The victim swiped at the offender with the pen, catching his shirt pocket. The offender repeatedly attempted to grab the victim by the arm and the victim continuously deflected and as a consequence suffered temporary markings to her arms. In attempting to flee, the victim swiped the offender a second time with the pen striking the side of the offender. The offender then took hold of the victim in what she describes as a "really tight bear hug", digging his fingers into the victim's back, causing temporary markings on the victim's upper back. The offender then told the victim that she was a cheater, that she planned this and that she wanted to fight. The victim felt terrified and repeatedly asked the offender to stop walking towards her and told him that he was scaring her. The offender aggressively pushed the victim onto the bed several times, pinning down and causing her neck pain. 4. It is my understanding that the conduct relied upon for the common assault is the combination of the conduct in the bear hug and pushing the victim onto the bed the number of times. As a common assault it is below mid-range. 5. The victim continuously asked the offender to get off of her and to leave. However the offender's demeanour became increasingly threatening and intimidating with him telling the victim, "You love this, want this". The offender pinned the victim down and placed his hand over her mouth, restricting her breathing for approximately 10 seconds. The victim repeatedly made attempts to push the offender off her using her hands and her knees to kick off the offender. This is the conduct which the choking charge contrary to s 37(1) of the Crimes Act relates. Noting the limited time and the nature of the conduct, the matter is towards the lower end of the range of seriousness. 6. The victim asked her daughter, who was inside her own bedroom, to call the police. The victim pushed the offender through the bedroom door into the backyard and the victim secured the door shut. The offender re-entered the house through another unlocked back door causing the victim to close several internal doors. The victim and the offender continued the argument in the victim's bedroom before the victim coerced the offender outside again. The offender was unsuccessful in a number of attempts to regain entry through the back doors, however the offender regained entry by climbing through the bathroom window and in the process of doing this he de-hinged the window. The victim hid from the offender inside the bathroom before running back into the bedroom. The victim sprayed the offender with Glenn 20 in an attempt to deter him. The offender took the can of Glenn 20 and a lighter and threatened to, "… burn this fucking house down". The victim called triple 0; the offender noticed this and called her a "fucking dog" and left. 7. It is this conduct to which the substantive charge contrary to s 111(2) of the Crimes Act relates. Again, the fact that the victim and the offender had been in an intimate relationship does not make the matter less serious. The conduct needs to be seen in the context of what it is, namely domestic violence. 8. The offender, having been excluded from the premises, made continued efforts to re-enter the premises with the clear intention of further intimidating the victim. The victim would have been very frightened indeed. The matter is below mid-range but not substantially so. 9. Not content with the intimidation of the victim that day at 12.22am on 21 December 2021, the victim received a voicemail from a number she did not recognise but she recognised the voice of the offender. "The offender said, "If you go near my little girl I'm going to treat you the same as I treated that paedophile… You are a filthy fuckin' piece of shit… If you contact my little girl I'm caving your fuckin' head in… You go near my children I'll kill ya… I'll fuckin' smash your fuckin' face in… So that's a threat". Not surprisingly, the victim was terrified and she was in fear of the offender. At 8.19am the victim received several threatening Facebook messages from the offender. The facts recite that the messages were, "u leave her alone or I'll do what dad needs to do to keep a predator like u away from children" and "I've put the word out about u and where u live." 10. The Intimidation charge relates to the threats left on voicemail and Facebook. They are quite violent threats. The offender had been violent to the victim. In the circumstances the intimidation is slightly below mid-range. 11. All the conduct on 20 December 2021 was in breach of an apprehended domestic violence order made in favour of the victim against the offender on 3 December 2021. One of the conditions was not to contact the victim. Noting the conduct, that constitutes the breach. This is a serious example of breaching an ADVO. Stalk/Intimidate; Common Assault and associated s 166 matters 1. The offender went to the victim's home on 3 January 2022. At about 5 pm he invited some friends over to the residence for some drinks. Throughout the evening the victim and the offender consumed alcohol with the offender drinking multiple glasses of cask wine. At about 10 pm an argument occurred between the victim and the offender resulting in the offender removing himself from the victim's residence without any further incident. 2. At about 5:30 am on Tuesday, 4 January 2022 victim was asleep in her bedroom at her address in Mount Austin and she was woken by the offender, who began to argue with her about their relationship. The victim told the offender she was going to call the police. The offender forced the victim backwards onto the bed while holding both of her arms. He took her phone. The victim got up from the bed and reached for a hockey stick which was located in a corner of the bedroom. The offender said to the victim, "Gonna attack me with a weapon now, are you?" and he reached around behind, pulling her into a headlock before throwing her back down on the bed. The offender and victim continued to argue about the phone. The victim told the offender that she just wanted him out. The offender began to pack up his belongings. However, the argument continued with the victim saying to the offender, "Do you know what Daniel said? You only just wanted to fuck me". The offender slapped the victim across the right side of her face. The argument continued. The offender placed his hand over the victim's mouth telling her to, "Shhh". The offender had his hand over the victim's mouth for 10 seconds. When the victim attempted to grab the phone from her bedside table the offender reached around from behind grabbing her in a headlock. She immediately felt pain in the back of her neck and cried out for the offender to release her. The offender assisted the victim by getting frozen peas from the kitchen to apply to her neck. 3. The common assault specifically relates to the headlock that caused the victim pain towards the end of the event. Noting the nature of the offending, in particular holding the victim in headlock, as a common assault the matter in my view is within the mid-range. 4. The Intimidation charge relates to what the offender did immediately thereafter. He said, "This is my apology" before going to get a knife from the kitchen holding the blade towards himself before running at the door in a separate area of the house. The offender stated to the victim that he was winded. They continued to argue verbally on and off throughout the morning. At about 9:15 am police attended the location to conduct a follow-up with the victim. The offender laid his arm over the victim holding her down whispering to her, "Don't you make a noise don't you fucking make a noise." The offender moved towards the back of the room, to the doorway of the wardrobe, signalling the victim to be quiet by moving his finger across his lips. At this point police were standing at the back sliding door of the victim's bedroom and heard noises coming from within the bedroom. Police entered and arrested the offender. As was his right he declined to be interviewed. The matter is below the mid-range of seriousness for a charge of Stalk/Intimidate. 5. There are two charges of contravention of the apprehended violence order attaching to a s 166 certificate. One of those breaches relates to the conduct of the offender out of which the charges of common assault and intimidation arise and the other relates to the breach of a condition about not contacting the victim within 12 hours of consuming alcohol. The second of those matters is a less serious example of a breach but the other matter is a quite serious example of breaching an apprehended violence order, in that the breach consists of actual violence towards the victim. Criminal History 1. The offender was born on 15 May 1984 and accordingly is now 38 years of age. He has a number of convictions for domestic violence related offending. In 2011 and again 2012 he was sentenced to a term of 12 months imprisonment for stalk/intimidate, assault occasioning actual bodily harm and contravene ADVO. In 2014 he was convicted and fined for resist or hinder police and intimidate police. In July 2022 he was sentenced to an aggregate sentence of 12 months in respect of various domestic violence type of offending. 2. The offender has a record that does not entitle him to any particular leniency. General Deterrence and Domestic Violence 1. The High Court in Munda v Western Australia [2013] HCA 38 at [54] referred to: "…the long standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence". 1. In R v Hamid [2006] NSWCCA 302 Johnson J (Hunt AJA, Latham J agreeing) said at [86]: "In sentencing a domestic violence offender, and in particular a repeated domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crime of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act, 1900 including the statutory objects recited in s 562AC". 1. Price J (McClellan CJ at CJ, Hall J agreeing) in Hiron v R [2007] NSWCCA 336 at [32] said: "Offences for violent attacks in domestic settings, this Court has emphasised, must be treated with real seriousness. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protecting the community…" 1. Similar statements were made by Price J in R v Eckermann [2013] NSWCCA 188 at [55]. 2. In Cherry v R [2017] NSWCCA 150 at [78], Johnson J (Macfarlan JA, Harrison J agreeing) said at [78]: 'It is undoubtedly the case that the criminal law, in the area of domestic violence, requires a rigourous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community." 1. In his remarks on sentence in the matter of R v Biles (No 2) [2017] NSWSC 525 at [60] Fagan J said: "the Court of Criminal Appeal and individual judges of this Court have repeatedly stated the crimes of domestic violence towards female partners are to attract sentences of sufficient severity to deter others who might offend similarly…" 1. Further, there must be an element of general deterrence factored into the sentence in respect of breaching apprehended violence orders is concerned. Bellew J in his remarks on sentence in R v Lloyd [2022] NSWSC 906 said at [20]-[21]: "The fact that domestic violence is a profoundly serious problem in our community has been the subject of previous judicial comment. Its proliferation has led to an increased necessity for Magistrates in the Local Court to make ADVOs for the purposes of protecting people such as Ms Greenwood, who find themselves in controlling and abusive relationships and who, as a consequence, fear for their safety. However, the efficacy of an ADVO depends upon the person against whom it is made strictly complying with its terms. The present case demonstrates the catastrophic consequences that may follow when such an order is breached. [21] The ADVO which was in force against the offender at the time of Ms Greenwood's murder was made by a Magistrate in the Local Court, for the specific purpose of ensuring Ms Greenwood's safety. It was not to be regarded as some empty rhetorical flourish, pronounced by a functionary in the performance of some rote administrative procedure. The pervasion of domestic violence in our community in recent years is such that the point has been reached where one thing needs to be made clear: any person who is subject to an ADVO is not at liberty to treat it as a piece of paper, containing an insignificant and inconvenient form of words, which can be ignored when it suits them, or worse still, when they wish to set about committing some nefarious and violent act against the person for whose protection the order has been made. A person who acts in breach of an order of the kind made against the offender should expect that any such breach will be treated seriously by the Courts. In the context of the present case, the offender's breach of the ADVO which was put in place for Ms Greenwood's protection is to be given full weight as a circumstance of aggravation." Victim impact statement 1. Exhibit B on sentence is a victim impact statement from the victim. In that statement she sets out that the impact of the abuse that she suffered at the hands of the offender continues to affect her mental health and everyday functioning. She also says that she requires ongoing medication and counselling. Her career as a vocal coach has been adversely impacted since the offending. She suffered decreased self esteem and is more fearful and has a heightened sense of awareness. 2. The Crown does not rely on the contents of that statement to ground a finding of any statutory factor of aggravation pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act, 1999. I note that there is no medical material made available to the court despite the victim setting out the name of a practitioner she has consulted. 3. Conformably with the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8 there is limited use the court can make of the victim impact statement. However, so far as I am able, the effect of the crimes on the victim will be taken into account pursuant to s 3A(g) of the Sentencing Act. Subjective Case 1. The offender gave evidence in his own case. The offender was particularly difficult to understand. He said he was 38 years of age, that he accepted the facts as set out in the agreed facts and that he told the truth to Dr White, the author of two neuropsychological reports. 2. When asked how he felt about what he had done he said that he felt terrible and that he felt ashamed of himself. I also understood the offender to say that he had been thinking about his conduct for several years. The offender was then taken to the victim impact statement and he was asked how that made him feel. He said he felt ashamed of his actions. He also agreed that the offending involved violent and coercive behaviour. He also said he would not want his daughter to be in a relationship with a person who behaved as he did towards the victim in this matter. The offender also accepted that he was intoxicated by alcohol at the time of all of the offending. 3. There was no challenge to this aspect of the offender's evidence. Further, at page 6 of Dr White's first report (exhibit 1 on sentence) it is noted, "despite having no recall of subsequent events, he said that he accepted responsibility for his actions and expressed disbelief in same". In these circumstances I have no difficulty in finding on balance the offender is remorseful. 4. Returning to the offender's evidence, he said that as at August 2021 he was working as a labourer in pastoral land management and in particular as a brush cutter. Essentially this involved clearing land. However, because of the Covid pandemic he was not able to continue with this employment. He was unable to return to Queensland so he stayed with his sister in Wagga Wagga. As at October 2021 his life was "terrible" in that he had no sense of purpose, no work, and no stable place to live. He began drinking alcohol daily. 5. The offender briefly mentioned an assault of which he was the victim, which occurred in 2012. There is further information relating to this incident within Dr White's report, that is Exhibit 1 on sentence. 6. The offender's evidence continued that custody was "a dark place to be". He felt anxious in custody. He gave evidence of significant lockdowns because of the Covid pandemic. The consequences of the pandemic is a matter taken into account in respect of all full-time custodial sentences. Lockdowns are more frequent and of longer duration, face to face visits are all but eliminated, and outside agencies that conduct courses and the like have difficulty in accessing the correctional centres. All of this goes to making custody more onerous and goes towards a finding of special circumstances. 7. The offender has undertaken a number of courses while in custody including a course as to awareness skills, and a course in education and employment. He was unable to complete an alcohol awareness course because he was moved from the correctional centre where the course was being conducted. 8. Clearly alcohol has been a significant issue so far as the offender is concerned for a significant period of time. He said that now that he was not drinking; he said was clearer and he accepted that when he was drunk he was unbalanced and he was "not a nice person when he was drinking". I understood his evidence to be that he accepted that the use of alcohol was a significant factor in his violent and coercive behaviour. The offender will need an extended period of supervision upon his eventual release to ensure that he receives appropriate treatment and counselling in respect of alcohol abuse. This too goes to the issue of finding a special circumstances. 9. I understood the offender to say in his evidence that he has some family support and would be able to obtain accommodation with family members upon his release. He would like to go back to bartending or some type of pastoral (meaning rural) work he said that he promised himself not to find himself in this type of situation again. He also indicated that he will speak to his parole officer about undertaking programs and courses upon his release. 10. The offender was not cross-examined and accordingly his evidence is unchallenged. In any event the offender presented in my view as reasonably impressive and at least at this point sincere in his desire to address this issue with alcohol and to undertake courses. 11. I turn now to the reports of Dr White. At page 3 of the first report (exhibit 1 on sentence) the background of the offender is set out. Both his parents were heavy drinkers and his father was physically violent towards his mother on a very regular basis however he denied any childhood abuse. He said that his mother hated him because he reminded her of his father. His parents separated when he was about 10 years of age. The relationship with his mother deteriorated after his father left and she began having a friend to come to the house on a regular basis and the two of them would use illicit substances. He recalled on one occasion his mother poisoning his rabbits and hitting him on the head with a crowbar. He began channelling his energy into sport and rugby league in particular. At 15 he reported witnessing the babysitter sexually assaulting his sister. His mother sent him to his father's house for the weekend and told him not to return; when he returned a few days later the house was empty and his mother and siblings were gone. He stayed with his father for some time but felt that he did not fit in as his father had re-partnered. 12. Clearly these factors enliven the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 to a meaningful extent, reducing the moral culpability of the offender by that extent. 13. The offender completed year 10 but reported "falling behind" academically at high school, noting mathematics was particularly difficult for him. He changed school a few times and was subject to bullying at school. He has completed several training courses at TAFE since leaving school. 14. At pages 4 and 6 of the report details of the serious assault of which the offender was a victim in 2012 are set out. Medical records indicate that he was in St George Hospital for seven days, having been transferred there from Wagga Wagga after being assaulted with a baseball bat. The offender received multiple facial and skull fractures. At page 5 of the report it is noted that since the assault the offender reported noticing cognitive changes including difficulty articulating his thoughts and reduced concentration. At page 9 of the report the author opines that the information that was able to be obtained of the treatment of that injury suggests at least a mild complicated but possibly moderate traumatic brain injury. I note however at page 7 of the report the author reports that the offender's full-scale IQ fell within the low average range. However, there were clinically significant differences between his index scores from which that score is derived. At page 10 of the report the author notes, "Mr Murray presents with some evidence of cognitive impairment primarily in his executive function on current assessment, likely owing to a combination of traumatic brain injury and substance use." 15. A little later in the report (page 11) the author opines that the offender's cognitive deficits would have been evident prior to and at the time of offending and would have likely been further compromised secondary to substance use at that time. Dr White goes on to say that "his cognitive deficits primarily around his reasoning concreteness and preservation would make it difficult for Mr Murray to consider and reason through situations, consider alternative explanations and response patterns and monitor his behaviour particularly in highly emotive situations such as in the current offences." 16. While Dr White opines that the offender has some cognitive defects but the fact remains that his total IQ was within the low normal range. I did not understand counsel for the offender to submit or even suggest that cognitive impairment or intellectual impairment impacted on the objective seriousness of the matter. 17. It appears from the report (page 5) that the offender has been abusing alcohol since his late teenage years. He was drinking every day in the months leading up to the offending for which he now appears for sentence. The offender acknowledged to the author of the report that his alcohol use has been "problematic for some time" and that he had never tried to stop. He has experimented with cannabis and methamphetamine (ice). 18. The report then sets out that a Justice Health report dated 27 June 2022 indicated that a psychiatrist had diagnosed anxiety and depression. The offender was prescribed antipsychotic and antidepressant medication. I do not understand it to be submitted that there is a causal connection between the offending and those mental health issues. 19. In this regard I note the answer to specific question 3 on page 10 of the report. Part of the specific question which is in italics reads "… If any mental health conditions are present in your opinion is any causal link between them and his offending". In answer to that specific question the author opines that the offender has been diagnosed with anxiety and depression and those conditions appear to have been long-standing extending, prior to the time of the offending for which he appears for sentence. The author also sets out that there is a long-standing history of antisocial behaviours and risk-taking behaviour. The author says as part of the answer "He reports a significant alcohol use and amphetamine use in the lead up to the current offences likely further reducing his ability to inhibit responses, manage his emotions and to reason accordingly." I interpret this as meaning that the significant alcohol use and amphetamine use reduced the ability of the offender to inhibit responses, rather than an opinion that there was a causal connection between the mental health conditions and the offending. Nevertheless, the mental health issues are an important part of the offender's overall subjective case. 20. Dr White recommends that the offender would benefit from courses to develop skills and sustain prosocial healthy relationships as well as to address substance use. She also recommends that while those issues can be addressed while the offender is in custody, treatment should continue after his release. She also opines the offender will require ongoing management and treatment for his depression and anxiety and medication review. She also opines that because of the cognitive difficulties custody will be more onerous as the offender is at increased risk of conflict with others. All of these matters adds to the reasons justifying a reasonably generous finding of special circumstances. 21. There is a second report from Dr White, exhibit 2 on sentence. That report adds little to the initial and more comprehensive report but Dr White does observe that the pattern of behaviour with the later offending indicates controlling, intimidating, manipulating and abusive behaviour which escalates quickly from a verbal disagreement to violent behaviour. She opines the offender displays a lack of insight and reduced accountability for his pattern of abusive behaviour and the impact of that behaviour. She then says that this would be a consideration for any treatment plans and treatment targets. General Remarks 1. This is an appropriate matter for the imposition of an aggregate sentence. If separate sentences were imposed there would need to be some meaningful level of accumulation between the various episodes of offending and there would have to be some degree of partial accumulation in respect of the offending within those episodes of offending. In respect of the charges relating to contravention of an apprehended domestic violence order the level of accumulation in respect of those charges would be very slight, if any, given that the other substantive offences constitute the breaches of the order. 2. There should be a reasonably generous finding of special circumstances in this matter given the mental health issues, partial accumulation of sentence, but moreover the need for a significant period of intensive and extensive supervision in order that the offender might receive appropriate treatment and counselling in respect of his alcohol and substance abuse issues and his mental health issues. There is also an issue of assistance in reintegration into the community. 3. At the sentence hearing the parties agreed that the appropriate commencement date of the sentence is 4 April 2022, and accordingly that is the date on which I will commence the sentence and the non-parole period. 4. I suggested at the sentence hearing that a fixed term of imprisonment to be served wholly concurrently with a non-parole period imposed in respect of the other matters be imposed in respect of the Commonwealth offending. I understood both parties agreed with this course. 5. I must give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. Section 3A provides the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. Section 5 of the Act provides that a court must not impose a sentence of imprisonment unless it is satisfied that having considered all possible alternatives no other penalty other than imprisonment is appropriate. Given the offending, the maximum penalties provided, the criminal history and the breach of conditional liberty, I am firmly of the opinion that no other penalty other than imprisonment is appropriate. No contrary submission was made on behalf of the offender. Given the length of the sentence that sentence of imprisonment must be served by way of full time custody. 2. It will be necessary to set out the sentences that would be imposed if separate sentences were imposed. I will do so in tabular form. These remarks have been reduced to writing and a copy will be provided to each party upon pronouncement of sentence. Table and Orders H85789562 Seq Offence Description Max penalty Indicative sentence 6 Aggravated Enter with Intent to Commit a Serious Indictable Offence – s 111(2) Crimes Act, 1900 Climbing through window with intent to intimidate 14 years 1 year 10 months (starting point 2 years 6 months) Section 166 matters 2 Stalk/Intimidate – Section 13(1) Crimes (Domestic and Personal Violence) Act 2007 Oral threats to "cave head in" etc Jurisdictional limit 2 years 12 months (s/p 16 months) 4 Contravene Apprehended Violence Order – s14(1) Crimes (D & PV) Act AVO in place 2 years As above 5 Intentionally Choke a person – s37(1A) Crimes Act Hand over mouth 10 seconds making breathing difficult Jurisdictional limit 2 years As above 7 Common Assault – s 61 Crimes Act Grab and hold in bear hug 2 years 9 months (s/p 12 months) H1103382990 2 Stalk/Intimidate – s13(1) Crimes (D & PV) Act Threaten self harm and associated conduct 5 years 15 months (s/p 20 months) 5 Common Assault –s 61 Crimes Act Grab victim in headlock 2 years 12 months (s/p 16 months) Section 166 Matters 1 Contravene Apprehended Violence Order – s14(1) Crimes (D & PV) Act AVO in place 2 years 12 months (s/p 16 months) 6 As above Approach within 12 hours of consuming alcohol 2 years s 10A – conviction no further penalty H90991186 1 Sexual Intercourse without consent – s 61I Crimes Act Anal intercourse while holding victim down on bed 14 years SNPP 7 years NPP 2 years 4 months; B.O.T 1 year 2 months, total sentence 3 years 6 months s/p 4 years 6 months with rounding down 9 Use Carriage Service to Menace/ Harass/ Offend – s 474.17(1) Criminal Code 1995 (Cth) Calls from gaol 5 years NOT INCLUDED IN AGGREGATE SENTENCE Section 166 matter 5 Contravene Apprehended Domestic Violence Order – s 14(1) Crimes (D & PV) Act AVO in place 2 years 12 months (s/p 16 months) 1. In respect of sequence 9 on H90991186, i.e. the offence of Use Carriage Service to Harass/Menace/Offend, the offender is sentenced to a fixed term of 12 months imprisonment to commence on 4 April 2022 and which will expire on 3 April 2023. 2. In respect of all other offending the offender is sentenced to an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years 8 months. 3. The non-parole period will commence on 4 April 2022 and will expire on 3 December 2025. 4. The balance of term on parole of 1 year 10 months (22 months) will commence on 4 December 2025 and will expire on 3 October 2027. 5. The offender is eligible for release to parole at the expiration of the non-parole period and I recommend that release. 6. The sentence indicates a finding of special circumstances the reasons for which were given earlier in these reasons. Additional to those reasons is the issue of partial accumulation of sentence noting that on 18 July 2022 the offender was sentenced to an aggregate sentence of 12 months to date from 31 December 2021. The total effective sentence the offender is serving commenced on 31 December 2021 and will expire on 3 October 2027. In round figures that is 5 years 10 months. The period in actual custody, assuming the offender is released at the expiration of the non-parole period I have imposed today is from 31 December 2021 to 3 December 2025. In round figures that is 3 years 11 months (47 months). The non-parole period I have imposed today is two thirds of the total sentence imposed today. The total period in actual custody is approximately 67% of the total effective sentence, which still indicates a finding of special circumstances. 7. A copy of the reports of Dr White are to be forwarded to the Department of Corrective Services with the relevant warrant. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2023